What is Unlawful Presence?

unlawful presence

Unlawful presence is the period of time that a person spends in the United States without being properly admitted or paroled, or it is a period of time which an individual spends in the U.S. without being authorized.

If you are in the United States without being admitted or paroled, then unlawful presence started accruing on the day you entered the country without admission or parole. If you have overstayed the amount of time permitted on your Form I-94, then typically, you start accruing unlawful presence after the date specified on Form I-94. If you have been admitted for a duration of status, then you are permitted to stay in the U.S. for the duration of your program, studies, or temporary work.

Why Would Someone Need a Waiver?

A person who has accrued unlawful presence in the U.S. and who is otherwise eligible to receive an immigration benefit through a family member must apply for a waiver in order to have their period of unlawful presence forgiven before they are able to undergo the rest of the immigration process.

What is a Waiver?

An immigration waiver is used to have the government “forgive” an individual’s time of unlawful presence or other grounds of inadmissibility. The waiver applicant would have to prove that there would be an extreme hardship posed to the applicant’s U.S. citizen or lawful permanent resident family members if they were denied an immigration benefit.

How Do I Apply for a Waiver?

Depending on where the waiver applicant is located, they will have to file Form I-601 with their local U.S. Embassy or consulate if they are overseas, or they may file Form I-601 directly with the USCIS if they are located within the United States. Remember, a waiver applicant has to prove why they deserve to have their grounds of inadmissibility or unlawful presence forgiven. It is important to submit documents which demonstrate extreme hardship, your relationship(s) to qualifying relatives, and other evidence with demonstrates that your case should be approved.

Consider setting up a consultation with an attorney at Gilles Law, PLLC. You can reach us at 980-272-8438 at our office in Uptown Charlotte. We are here to assist with your inquiries.

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